The latest on California politics and government

December 26, 2013

A prominent California consumer advocacy group is actively tying a tonsillectomy gone horribly awry to a planned ballot initiative.

Alameda County Superior Court Judge Evelio Grillo ruled on Tuesday that 13-year-old Jahi McMath, who fell into a coma after complications in tonsillectomy surgery, was brain dead and could be taken off life support. The McMath family secured a restraining order to keep the child alive and reportedly spent Christmas in the hospital, by Jahi's bedside.

For Consumer Watchdog, engaged in the latest skirmish of a years-long battle over medical damages payments, McMcath's case provided fodder for a fundraising pitch.

Under California's current system, pain and suffering damages paid out as the result of medical malpractice lawsuits — distinct from the ongoing costs of medical care — are capped at $250,000. Consumer Watchdog has spearheaded a ballot initiative to raise that limit.

Hospitals "actually have an incentive to let children like Jahi die," a Dec. 26 fundraising email from Consumer Watchdog argues, because they would not need to pay medical bills spurred by negligence claims.

"If kids injured by medical negligence die, the most their families can recover is $250,000 - a limit set by the legislature 38 years ago and never adjusted for inflation," the email reads, referring to the Medical Injury Compensation Reform Act, a 1975 law commonly referred to as MICRA.

"Patients like Jahi are the reason Consumer Watchdog helped draft the Troy and Alana Pack Patient Safety Act that will hold doctors and hospitals accountable for medical negligence and substance abuse problems," the email continues, referring to the ballot initiative.

Consumer Watchdog has also called for an investigation into McMath's surgery, arguing in a letter to California Attorney General Kamala Harris and Alameda County District Attorney Nancy O'Malley that Children's Hospital Oakland "has been less than forthcoming about the circumstances that led to the tragedy."

"In a case where negligence is suspected," the letter charges, "California law makes it highly advantageous for the medical providers and facilities involved if children die."

Children's Hospital Oakland has already launched an investigation into the case, spokeswoman Cynthia Chiarappa said. Chiarappa said it would be premature to comment on any findings but rejected Consumer Watchdog's argument.

"The allegations from Consumer Watchdog are outrageous," Chiarappa said.

In remarks to reporters last week, Harris called the case "tragic" and said that "we are monitoring it to see if and whether there is any role that we would play appropriately."

A spokeswoman for the California Medical Board, also a recipient of Consumer Watchdog's letter seeking an investigation, said she could not comment on the possibility of a probe into McMath's death.

"We can't comment at this time on anything that could be ongoing or not ongoing," said Cassandra Hockenson.